Images de page
PDF
ePub

(3) 'wire communication shall have the same meaning as

2

set forth in subsection 2510(1) of title 18, United States Code;

(4) 'electronic communication' shall have the same

meaning as set forth in subsection 2510 (12) of title i6, United

[blocks in formation]

6

(5) "intercept' shall have the same meaning as set

7.

forth in section 251014) of title 18, United States Code, except

8

that with regard to a common carrier's transmission of a commun

9

ication encrypted by a subscriber, the common carrier shall not

10

be responsible for ensuring the government agency's ability to

11

acquire the plaintext of the communications content, unless the

12

encryption was provided by the common carrier and the common

13

carrier possesses the information necessary to decrypt the

14

communication;

15

(6) 'concurrent with the transmission of the communi

16

17

cation,' as used in section 3(a) (2) of this Act, means contemporaneous with the transmission; but it shall include, with regard to electronic communications, the ability of a government agency to acquire such communications at the conclusion of the

18

19

20

transmission, and, with regard to call setup information, the

21

ability to acquire such information either before, during, or

22

immediately after the transmission of the communication;

23

(7) 'call setup information' shall mean the information

24

generated which identifies the origin and destination of a wire

25

or electronic communication placed to, or received by, the facil

26

ity or service that is the subject of the court order or lawful

1

authorization, including information associated with any telecom

2

munication system dialing or calling features or services; and

3

(8) 'government' means the Government of the United States and any agency or instrumentality thereof, the District of

4

5

Columbia, any commonwealth, territory or possession of the United

6

States, and any state or political subdivision thereof authorized

[blocks in formation]

10

Chapter 119 of title 18 is amended by making the

[blocks in formation]

13

(a) Definitions. - Section 2510 of title 18, United States Code, is amended

14

15

(1) in paragraph (1), by striking", but such term

16

does not include" and all that follows through "base unit"; and

(2) in paragraph (12), by striking subparagraph (A)

17

18

and redesignating subparagraphs (B) through (D) as subparagraphs

[blocks in formation]

20

(b) Penalty. - Section 2511 of title 18, United States Code, is amended

21

22

23

(1) in subsection (4) (b) (i), by inserting na cordless telephone communication that is transmitted between the cordless telephone handset and the base unit," after "cellular

[blocks in formation]
[ocr errors][merged small][merged small]

2

3

cordless telephone communication that is transmitted between the cordless telephone handset and the base unit," after "celluiar telephone communication, ".

5

(2)

Radio based data communications.

6

Section 2510(16) of title 18, United States Code, is

7

amended by striking the word "or" at the end of subparagraph (D)

8

and inserting an "or" at the end of subparagraph (E) and adding

9

the following new subparagraph:

10

"(F) an electronic communication;".

11

(3) Penalties for monitoring radio communications that are not scrambled, encrypted, or non-public.

12

13

Section 2511(4) (b) of title 18, United States Code, is

14

amended by deleting the phrase "or encrypted, then--" and
inserting the following:

15

16

17

", encrypted, or transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such

[blocks in formation]

Section 2511(2)(a)(i) of title 18, United States Code,

22

23

is amended by striking out "used in the transmission of wire
communication and inserting in lieu thereof "used in the
transmission of a wire or electronic communication".

24

[ocr errors]
[merged small][ocr errors]

SECTION 1. SHORT TITLE Section 1 provides that the short title of the Act is the “Digital Telephony and Communications Privacy Improvement Act of 1994.'

SECTION 2. PURPOSE Section 2 states the purpose of the Act is to clarify and define the responsibilities of common carriers, providers of common carrier support services, and telecommunications equipment manufacturers to provide the assistance required to ensure that government agencies can implement court orders and lawful authorizations to intercept the content of wire and electronic communications and acquire call setup information (e.g., dialed number information) pursuant to the Federal and state electronic surveillance and pen register and trap and trace statutes. An effective electronic surveillance capability is essential to Federal, state, and local agencies so that they can secure the public safety, effectively enforce the law, and maintain the national security. Without clarification of the increased responsibilities of the telecommunications industry to assist and cooperate, this critical investigative technique will be eroded, if not precluded, by the advances in telecommunications technology.

The statutory requirement for common carriers and others to provide needed assistance to law enforcement agencies in the execution of electronic surveillance court orders and lawful authorizations is a long-standing one. Since 1970, the assistance of common carriers and others has been mandated. In a 1970 amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), Congress enacted a provision specifying that a "communication common carrier (common carrier), landlord, custodian, or other person shall furnish (the government applicant for court-ordered electronic surveillance) forthwith all information, facilities, and technical assistance necessary to accomplish the interception * * *." In return for providing the information, facilities, and technical assistance, the assistance provider is required to be compensated by the applicant for reasonable expenses incurred in providing the assistance. See 18 U.S.C. 2518(4).

The foregoing “assistance” provision also has been incorporated in the Foreign Intelligence Surveillance Act of 1978 (FISA) (codified at 50 U.S.C. 1805(b)(2)(B)) and in the pen register/trap and trace provisions of the Electronic Communications Privacy Act of 1986 (“ECPA") (codified at 18 U.S.C. 3134(a), (b)).

The purpose of the legislation is to clarify and define the nature and extent of this responsibility which arises from the stark mandate of the foregoing laws.

In 1970, the telephone industry was monolithic, and the part of the telecommunications network where government effected electronic surveillance was relatively uncomplicated. since that time, with the breakup of AT&T through divestiture, the,entry of numerous new communications providers in the telecommunications marketplace, and the introduction of many new (and often proprietary) technologies, services, and features, the telecommunications networks have become more varied, advanced, and complicated. Though unintended, the complexities of the telecommunications networks create, and will continue to create, impediments to Federal, state, and local government agencies as they attempt to execute electronic surveillance and pen register and trap and trace court orders and authorizations.

With the passage of the ECPA amendments to Title III, electronic communications have received statutory privacy, protection as well, and the term common carrier has been replaced with the broader terminology of provider of wire or electronic communication service. However, intercepting voice communications and acquiring the attendant dialing information remain of the greatest importance to government agencies; and the principal area where technological impediments have been encountered is within the networks of wireline and cellular common carriers.

Solutions have not always been readily available for existing problems, and they may not be for the future problems that are foreseen in the emerging technologies, services, and features. Such solutions also take time and may require significant "capital” outlays. As a result, industry and government agencies have been uncertain as to the nature and extent of the foregoing “assistance” provision. In particular, key questions exist in terms of who is responsible for efforts to remove the impediments; how quickly the impediments should be removed; what the consequences are, if any, for not removing them in a timely fashion; and who is responsible for paying the costs.

Because of concerns about compromising investigations, harming law enforcement and common carrier relationships, and due to the prospect of substantial delays, government agencies have been reluctant to pursue contempt or other legal rem

edies to resolve this issue. Also, because of the variety of technological impediments and the differences in levels of effort required to remove them, the government has been concerned that a particular judicial ruling may have only limited precedential value. Consequently, as things now stand, common carriers and other communications service providers ultimately decide what they will do to remove technological impediments, and when. When carriers and providers have acted, it frequently has taken months, and in some instances years, for ad hoc technical solutions to be developed, and the rate and breadth of their deployment have been uncertain. Thus, since the mid-1980's, technological impediments have frustrated, in whole or in part, the execution of a number of court orders for electronic surveillance, pen registers, or trap and traces, while the means of approaching and resolving the overall problem of the negative impacts of advanced telecommunications technology on electronic surveillance has eluded government and industry.

It has been observed that while it may be somewhat difficult and expensive to remove some existing impediments forthwith, that where new, advanced services and features are still under development or where upgrades are being prepared that technological solutions could be applied with significantly less difficulty and expense. Additionally, some common carriers, especially those who only more recently have entered the marketplace, have noted that they are not familiar with all of the electronic surveillance requirements of government agencies. Finally, some common carriers have stated that they rely on certain support service providers and equipment manufacturers to provide telecommunications service, and that without the help of those entities they may be unable to make the modifications required to remove the impediments and meek the requirements of government agencies.

Although Government and industry have made efforts to resolve this problem, after several years of discussion and consultation, the basic concerns and issues remain: what are the requirements of government agencies in this area; who is responsible for removing the impediments that impact on these requirements; how quickly must these requirements be met; what are the consequences, if any, for not meeting them on a timely basis; and who is responsible for paying the costs. This legislation addresses and resolves these concerns and issues.

The “Purpose” section also indicates that, excepting section 4, the legislation is not intended to alter any provision in the Federal electronic surveillance, pen register, or trap and trace statutes, or those of any state or other jurisdiction, such as those regarding the authority to intercept communications or install or use pen register and trap and trace devices; the current duty to provide assistance and receive payment therefore; causes of action; civil liability; or good faith defenses. The underlying purpose of the legislation is to clarify and define the responsibilities of common carriers such that government agencies can maintain their ability to properly and effectively execute electronic surveillance-related court orders and lawful authorizations.

An additional purpose to the Act, as set forth in section 4, is to improve commu. nications privacy protection for users of cordless telephones, certain radio-based data communications and networks, communications transmitted using certain privacy-enhancing modulation techniques, and to clarify the lawfulness of quality control and service provision monitoring of electronic communications.

SECTION 3. NEW SECTION Chapter 109 of title 18, U.S.C. is amended by adding a new section, section 2237, entitled: "Common carrier assistance to government agencies." Amendment of this chapter is made in order to avoid having to amend three separate, yet interrelated, Federal statutory regimes: Title III (18 U.S.C. 2510 et seq.); FISA (50 U.S.C. 1801 et seq.); and the pen register and trap and trace provisions of the ECPA (18 U.S.C. 3121 et seq.). Common carrier assistance: assistance requirements

Section 3(a) sets forth the requirements of government agencies when conducting electronic surveillance and pen register and trap and trace investigations. These requirements, which are generic in nature, were developed by the FBI and include input from representatives of various Federal, state, and local law enforcement agencies that utilize electronic surveillance extensively. These requirements relate to the capabilities needed to accomplish effectively the interception of communications and the acquisition of call setup information. The Government intentionally has eschewed setting any technical standards because it does not desire to “dictate" particular technological solutions. Further, owing to the diversity (and often proprietary nature) of each carrier's network and the variations in approaches that can be taken to achieve compliance, it is the Government's position that each common

« PrécédentContinuer »